Personal Injury Lawyer Burnaby
She was hit in three separate accidents. And – in probably the largest similar court award ever made in Canada – a Vancouver jury initially gave her over $12 million. Part of that was $6.5 million for “non-pecuniary compensation” (legal short-hand for pain, suffering and loss of enjoyment of life).
Too much money? You’re right if you agree.
In the attention-grabbing case, the BC Court of Appeal revisited when the maximum judgment can be awarded for pain and suffering.
The plaintiff (let’s call her “Joan”) was hurt in three different accidents over a 15-month period, where she was not at fault. She suffered soft tissue injuries to her neck and, after the accidents, experienced continual upper body pain and depression and was unable to function effectively in the business she and her husband owned.
Before the car accidents, Joan had been injured in an accident at the PNE, which caused a mild concussion, and she later had surgery after a disc herniation was found. This raised the question of how much of her situation was due to the car accidents rather than her pre-existing condition.
But she testified that she felt her condition was improving before the car accidents (and compensation can still be given if a subsequent accident aggravates a pre-existing condition).
At trial, the judge told the Vancouver jury that Canada has an upper limit or cap on the compensation that can be given for pain and suffering. Asked by the judge if they meant to award that top amount, the jury said yes and cut this part of its award to the maximum allowed.
The trial judge determined this figure to be roughly $327,000. Adjusted for inflation, this is the equivalent of the $100,000 maximum amount for pain and suffering fixed by the Supreme Court of Canada in 1978. The defendants appealed what they viewed as a still-excessive court award totalling over $6 million, and asked for a new trial.
The BC Court of Appeal agreed there should be a new trial for several reasons. One reason related to the amount for pain and suffering. The appeal court pointed out that the maximum award of some $327,000 is only for cases of “truly catastrophic injury,” which the plaintiff Joan admittedly hadn’t endured.
When the Supreme Court of Canada fixed this cap in 1978, it dealt with three very serious injury cases – a 17-year old with a neck injury resulting in loss of use of all limbs, a 21-year old quadriplegic and a four-year old with serious brain damage and debilitating physical injuries. The court there, noting that no money can provide true compensation, explained that the pain and suffering award is meant to help make the victim’s life more endurable (rather than express sympathy). Also, a cap would help prevent runaway insurance premiums in Canada. If awards were too high, reasoned the court, no one but the very rich could own a car and pay the huge premiums that insurance companies would have to charge to pay out on claims.
Of course, an innocent victim hurt in a car accident may be entitled to other types of compensation too, e.g., for medical expenses, income loss, future care and lost earning capacity. If you have the misfortune of being injured, consult a lawyer who can help you with recovering the fair compensation that may be your due.
Janice Mucalov, LL.B. for Gertsoyg & Company. This column provides information only and must not be relied on for legal advice. Please call Gertsoyg & Company at (604) 602-3066 for a free legal consultation concerning your particular case.
